MAHESH CHANDRA Vs. TARA CHAND MODI

JUDGEMENT

(1.) This is an application under Article 228 of the Constitution of India made by Sri Mahesh Chandra and Sri Bisheshwar Dayal, who at the date of the presentation of the petition were senior and junior Vice Presidents respectively of the Municipal Board of Hapur for a writ in the nature of quo warranto directing the opposite party to show bv what authority he Duroorts to claim to be a full-fledged President of the Municipal Board of Hapur and claims to act as President of the Municipal Board of Hapur without any Incapacity. A writ of mandamus has also been prayed for preventing him from acting as President of the Municipal Board of Hapur. The opposite party is Sri Tara Chand Modi who was elected the President of the Municipal Board in October 1953 at the general elections of that year by direct election by the electors of the Municipality under Section 43 (2) of the then U. P. Municipalities Act (U P. Act, II of 1916), hereinafter to be referred to as the Act. Subsequently by an amendment the election of a President has been made indirect and the president is elected on the system of proportional representation by means of the single transferable vote and by secret ballot by the duly elected members of the Board.

(2.) The petitioners case is that a motion of no-confidence was passed against Sri Tara Chand Modi, according to the provisions of Section 87A of the Act on the 7th November 1956, that the motion of no-confidence was communicated to the president in accordance with the provisions of Sections 87A and 47A of the Act, that the President had not, as required by Section 47A of the Act, either resigned from his office or represented to the State Government to dissolve the Board and that therefore the President must toe deemed to be incapacitated under Section 47A (1) (b) of the Act from functioning as the President within the meaning of Section 55 of the Act.

(3.) The case of Sri Tara Chand Modi, how-ever, is that the motion of no-confidence against Mm was not passed in accordance with the procedure laid down in Section 87A of the Act as the Judicial Officer presiding at the meeting for the purpose of passing the motion of no-confidence did not read out to the Board the motion for the consideration of which the meeting had been convened. The case of the President further is that no copy of the motion which had been earlier forwarded along with the written notice of intention to make a motion of no-confidence against him to the District Magistrate, was forwarded to him but that what was forwarded was a copy of the notification by the District Magistrate convening the meeting for the consideration of the motion and that it was this notification which was read cut at the meeting of the Board which had been convened. The case of the President is that there was a non-compliance with the mandatory provisions of Sections 87A and 47A of the Act which had the effect of nullifying the no-confidence resolution. Further the failure to forward a copy of the very motion sent with the written notice of intention had the effect of not making it obligatory on him to either resign or represent to the State Government under Section 47A of the Act because the obligation to do the one act or the other arose only if a motion of no-confidence in the President had been passed by the Board and communicated to the President in accordance with the provisions of Section 87-A (7) and (11) of the Act. The President's case is that he could only be deemed to be incapacitated if there had been a failure on his part to resign or to represent to the State Government to dissolve the Board in accordance with the requirements of Section 47A of the Act. His contention is that because of the disregard of the mandatory provisions of Section 87A of the Act the pre-requisites for the application of Section 47A of the Act were lacking and that section was not attracted and that therefore no question of incapacity in the President arose.